R. Lewis Cope

By Ruth Musser-Lopez and Mark Gutglueck
This week, the long awaited Colonies Lawsuit Settlement Public Corruption Trial got underway in earnest, with the jury previously selected to pass judgment in the case against defendant Jim Erwin hearing opening statements from both the prosecution and the defense.
Erwin is one of four remaining defendants of the five who have been charged in the case.
In February 2010, charges were first filed against Erwin, a one-time sheriff’s deputy who was the elected treasurer and later the president of the union representing San Bernardino County’s Sheriff’s deputies, and a once-powerful county politician, Bill Postmus, who was both chairman of the board of supervisors, the chairman of the San Bernardino County Republican Party apparatus and later county assessor. Those charges came more than three years after Postmus vacated his position as supervisor when he was elected assessor in November 2006, shortly after which he hired Erwin to serve in the capacity of assistant assessor. The February 2010 criminal charges alleged that Postmus and Erwin were intertwined in an extortion and bribery circumstance relating to one of Postmus’s last acts as supervisor, when he and then-supervisors Paul Biane and Gary Ovitt approved the $102 million settling of a lawsuit brought by the Colonies Partners development consortium against the county and its flood control district over drainage issues. Those drainage issues existed at the Colonies at San Antonio residential and Colonies Crossroads commercial subdivisions in northeast Upland.
Both Postmus and Erwin pleaded not guilty to those charges in the immediate aftermath of that original criminal filing. Thirteen months later, however, Postmus in March 2011, pleaded guilty to 10 felonies and other misdemeanors in connection with the Colonies case as well as allegations of abusing his elected office as county assessor to bolster his political career, and drug use/possession. He agreed to turn state’s evidence and testify against the four defendants at trial in exchange for leniency.
Postmus then served as the star witness before a grand jury, which heard the testimony of more than 40 witnesses and then in May 2011 handed down a 29-count indictment naming Biane, who had been voted out of office as the county’s Second District supervisor in 2010; Mark Kirk, who had been the chief of staff to Gary Ovitt; Jeff Burum, one of the Colonies Partners’ two managing principals; and Erwin. The charges in the indictment superseded those filed against Erwin in the criminal case leveled against him 15 months previously. The indictment essentially rehashed the charges contained in the February 2010 criminal complaint, but enlarged upon the action of Biane, Kirk and Burum, and included them as defendants.
According to the indictment, Burum, seeking to profiteer from an excessive legal settlement, utilized a public relations consultant, Patrick O’Reilly, and Erwin to threaten and extort Postmus and Biane with exposure of issues relating to their respective lifestyles to convince them to settle the lawsuit the Colonies Partners had lodged against the county. Ultimately that information was withheld in conjunction with Postmus, Biane and Ovitt approving the settlement of the lawsuit for a $102 million payout, according to the indictment, and Burum then rewarded Erwin, Postmus, Biane and Kirk with the provision of $100,000 kickbacks to each of them disguised as political contributions to political action committees each of them had set up or in some fashion controlled. The indictment alleged that the $100,000 paid to Kirk was provided to him for delivering then-supervisor Ovitt’s vote in support of the settlement.
In his opening statement on Wednesday, San Bernardino County Deputy District Attorney R. Lewis Cope described the alleged unlawful extraction of a wrongful settlement as a “carrot and stick” scheme plotted by Burum and carried out largely with the assistance of Erwin. The prosecution team consists of members of the San Bernardino County District Attorney’s Office and the California Attorney General’s Office, most notably Cope and Supervising California Deputy Attorney Melissa Mandel.
Two juries have been impaneled for the trial – one for Erwin and the other for his three codefendants. That arrangement has been made because the prosecution wants to use certain statements Erwin made as evidence against him but are legally inadmissible against his codefendants. The jury impaneled to decide Erwin’s fate was present in the courtroom on Wednesday January 4 and Thursday January 5, while the jury for the other three defendants was not present. Both juries are to be present on Monday January 9 to hear opening statements with regard to the other three remaining defendants.
While it was anticipated that in his opening argument given on Wednesday Cope would dwell in almost total measure with regard to the action of Erwin, as it turned out his presentation focused nearly as much on the action of the other defendants as it did on Erwin. To the extent that Cope made allegations against Erwin, he did so within the greater context of the action of what he essentially described as a criminal enterprise by all four of the defendants and Postmus. That enterprise, Cope averred, revolved around Burum.
Cope said Burum used a “carrot and stick” approach to get the board of supervisors to approve a settlement favorable to his company, and that Erwin was instrumental in the application of the stick. “Mr. Burum,” Cope said, “is a well known developer with great resources. He is particularly well known by those who are politically inclined. He is a power broker, someone they want to see if they want to gain office, particularly if you are a Republican. There were politicians who felt they needed his endorsement if they are going to advance in their careers. He was a very important person in that realm and people sought him out.”
Referencing the county government center, located “less than a block away from here, the county and its representatives entered into a dirty deal, a deal that was born of greed and corruption and bribery, knowing it was a bad deal, knowing they would profit from it, knowing it was bad for the county,” Cope said. “All of the county’s attorneys recommended against it.”
Burum’s company, the Colonies Partners had “filed a lawsuit against the county,” and “wanted that lawsuit settled,” Cope said. “He wanted it settled because he wanted the money and the land that was part of the deal.”
Cope continued, “Mr. Erwin had a very interesting role and the evidence will show that at one time he was in charge of SEBA [the Safety Employees Benefit Association], the police union. Being in charge of that he had access to their resources. He was powerful but he wanted more. He wanted a greater political career. He wanted more power. We will explore how he went about gaining that power. He did that by facilitating the settlement. He did that by threatening members of the board of supervisors. He did that by telling them he would expose things about them they didn’t want the voters to know, that would damage their careers. He was serving Mr. Burum in moving the settlement along in ways that were not proper, in ways that were dark.”
Biane, Cope said, was another cog in the wheelhouse of corruption. Cope said that Biane, who was a real estate professional before he was elected to the board of supervisors, “was one of the supervisors who endorsed this settlement with Mr. Burum and the Colonies for $102 million. He did that against the advice of the best attorneys the county could hire. He did this despite the value of the property that would be exchanged was far in excess of what was required. The evidence will show he did know that.”
Continuing, Cope said, “Mr. Kirk was the chief of staff to Gary Ovitt. Mr. Ovitt relied a lot on Mr. Kirk. Mr. Kirk wanted to see the deal go through from the very beginning because he knew he would profit from it. Another person was Bill Postums. Mr. Postmus was also a member of the board of supervisors at the time the deal was entered into. He was an individual who also profited from this event. How did they profit? Kirk, Erwin, Biane and Postmus all set up PACs [political action committees].” PACs, Cope said, “are a mechanism whereby people can donate money to serve political purpose. It is perfectly legitimate and legal for a person to donate money to those. But in this case, the donations were essentially payments as bribes. Mr. Burum gave each of them $100,000 at the end of the settlement. [The money] did not all come at once. We will talk about the time period when the money came into the PACs. It is important for the case to know how significant PACS are to the men who have power. There are lots of things people can do [with PACS]. If you are clever, there are ways that you can use them to gain power and influence. So this became a very powerful motivator. What can you do with money in a PAC? You can donate to your election process. Mr. Postmus put [the money] into his campaign fund. Then you can go out and use it as political expenditures.”
In Erwin’s case, Cope said, he used the money to support the supervisorial candidacy of San Bernardino City Councilman Neil Derry, who in 2008 ran against supervisor Dennis Hansberger, one of the two supervisors who voted against the $102 million settlement. Erwin did so at least in part, Cope said, with the expectation Derry would hire him as his chief of staff. When Derry defeated Hansberger, Cope said, Derry indeed hired him.
In similar fashion, the $100,000 supplied to Kirk’s political action committee was part of an illicit manipulation of the political process, Cope said.
“Gary Ovitt was ostensibly Mark Kirk’s boss,” Cope said. “Mr. Kirk was his chief of staff. It was recognized that Mr. Kirk was very powerful in that position. You had to go through Mark Kirk to get to Gary Ovitt. Mr. Kirk’s word was important. He let it be known to Mr. Burum that he would deliver Gary Ovitt’s vote.”
Cope said that Burum, in conjunction with Erwin and another individual, Patrick O’Reilly, utilized the political ambitions of Postmus, Biane and Kirk to achieve the settlement on terms favorable to his company.
“These are politicians that wanted to be more than what they were,” Cope said. “Mr. Biane wanted to move up. He wanted a further, more important political office. He did not want something that would interfere with that pursuit. Mr. Postmus wanted further political office.”
Thus, Cope asserted, they wanted Burum’s monetary assistance, but they were wary of the negative publicity they might get if they came across as openly militating on his company’s behalf.
“These men are trying to help Mr. Burum, but at the same time they worried about the voters,” Cope said. “They are trying to help Mr. Burum arrive at a settlement but can’t, for political reasons, go too far. So, Mr. Burum changed tactics and as the time got closer to where the deal had to be made, he had to get Mr. Erwin to help him. Mr. Erwin worked, under the direction of Mr. Burum, to induce Postmus and Biane to settle.”
In this regard, Cope said, Burum had relied upon the advice provided to him by another politician he hired, former California State Senator Jim Brulte, who is now the chairman of the California Republican Party. Cope said that Brulte counseled Burum that “you have to change the narrative of what is in the news space if you want to change the environment in which the politician will settle” the lawsuit. “And by the way,” Cope said, “Mr. Burum did listen to Jim Brulte’s advice with respect to the media and made an active effort to change where the media would begin to move toward their position. Mr. Brulte worked on press releases, op eds, a sophisticated, well considered effort to change the narrative.” But, according to Cope, “That by itself was not sufficient, so Mr. Burum had to change the position.” To do this, Cope said, Burum employed “Patrick O’Reilly, an excellent media specialist in Riverside. He helped as well with the media narrative… to justify what they were going to do. Mr. Brulte and Mr. O’Reilly received good money from Mr. Burum for what they did.”
Cope said “Mr. Brulte was a very powerful man. He led our state legislature. He is currently the head of the Republican Party in California. He is a strategist with an understanding of how Sacramento works. Mr. Burum employed him. The reason he employed him was to obtain a settlement. Mr. Brulte helped him in many different ways. He helped fine tune the message Mr. Burum would give.”
In contrast to Brulte and O’Reilly being paid for their services directly, Cope said, “Mr. Erwin was more on a success fee arrangement. You bring me the settlement and you’ll be rewarded. We will talk about how that reward occurred. He [Erwin] gave him [Postmus] a vision of what his possibilities were. He introduced Mr. Postmus to Mr. Burum’s lifestyle. Mr. Postmus will tell you he explored the possibility of going for higher office.” Cope then quoted Postmus’s statements to the FBI to the effect that “Jeff [Burum] was very clear. If I was to ever leave office, he would take care of me, in helping me to get a job, but we have to get all of this behind us first before I can. If it is settled, afterwards there will be contributions.” Cope then told the jury, “He said that to the FBI, to the investigators. He said it to friends and associates. That FBI interview will be interesting for you to look at. Look at it carefully.”
Cope said that initially, Postmus did not seem to understand the term quid pro quo, which is Latin for ‘something for something.’ “Read it from beginning to end, because in the beginning he [Postmus] was confused and then it becomes clearer what he actually means,” Cope said. “Mr. Burum was offering him a future, but he had to come through with the settlement. If that didn’t happen, there would be no help. Mr. Kirk was going to bring in Mr. Ovitt’s vote and he got rewarded.” Furthermore, Cope said, Erwin served as “a secret intermediary” between Burum and Postmus. Cope said he would be able to establish his assertions because Postmus will testify. “Mr. Postmus has pled guilty to all the charges filed on him,” Cope said. “He was previously charged and pled guilty. There is a possibility he will spend as long as five years in prison for the things he has done.”
Cope said there were two pieces of land involved in the case, one being the 434 acres the Colonies Partners purchased in 1997 for 16 million and the other being undeveloped property in Rancho Cucamonga. The Upland property had formerly been owned by the San Antonio Water Company and contained within it flood control easements recorded in 1933, 1934 and 1939 on 67 of those acres. Those easements allowed the county flood control district to vector storm water running off of the nearby mountains and foothills there, Cope said. Meanwhile, Cope said, the California Department of Transportation, known by its acronym Caltrans, had pushed ahead with its plans to complete the 210 Freeway, also known as the Foothill Freeway. The freeway project was undertaken in conjunction with a joint powers agency, SANBAG, an acronym for San Bernardino Associated Governments, which involves all 24 of the county’s cities and the county, and serves as the region’s transportation agency. To accommodate the freeway project, the Colonies Partners sold a swathe of some 43 acres of its land across which the freeway would span, for which Caltrans paid $17 million, Cope said. Additionally, Cope said, the City of Upland successfully requested that the freeway be completed below grade. This created a situation in which a tremendous amount of water would flow onto the freeway during storms, Cope said, and the county’s flood control district took charge of the situation by completing the 20th Street Storm Drain, a 72 inch diameter pipe to whisk that water away and then vector it into the 67 acre flood control basin on the Colonies property. Cope said the 1933, 1934 and 1939 easements gave the county the right to do that. The county and its flood control district, Cope acknowledged, were obliged to construct the basin to handle that flow. The county maintained, he said, that the basin could be built for $3 million, while the Colonies Partners insisted the price of the basin’s construction would be considerably higher, as much as $23.5 million. It was this dispute over the continuing use of the 67 acres on the Colonies property for flood control purposes and the cost of the flood control basin that served as the basis for the Colonies Partners’ lawsuit against the county to extract an unnecessary settlement, Cope said.
According to Cope, the county was represented in that lawsuit by two very capable law firms, the first being Munger Tolles & Olsen and the second being the firm of Jones Day. In waging its defense of that suit, Cope said, the county had the 1933, 1934 and 1939 easements in its favor. Additionally, Cope said, the county could marshal to its defense that CalTrans, SANBAG and the City of Upland shared whatever conceivable liability the situation entailed, since those entities were responsible for the creation of the circumstances that led to the issues the Colonies Partners were contesting in the lawsuit. Thus, Cope said, the county’s financial responsibility amounted to perhaps ten percent and certainly no more than 20 percent of whatever damages the Colonies Partners might demonstrate that the company had suffered.
The county suffered a setback when the judge hearing the matter, Peter Norell, ruled that the county had abandoned the easements, thus eradicating its right to channel the water onto the Colonies Property. The county did not accept that ruling, however, Cope said, and appealed it to the Fourth District Court of Appeal. While that appeal was pending, during a negotiating conference in March 2005 involving on one side Burum and Colonies co-managing principal Dan Richards, Jim Brulte and the Colonies Partners’ lawyers and, on the other side, Postmus, Biane and the county’s attorneys, Postmus and Biane ordered all of the attorneys representing both sides to leave the room. About 90 minutes later, Postmus and Biane announced to those waiting outside that they had come to an accommodation with Burum and Richards. The suit would be settled, Biane said, by the county paying the Colonies Partners $77.5 million.
“This shocked and dumbfounded the attorneys because just a few weeks prior they had informed the board of supervisors that the value of the settlement was a very much lower price then what Mr. Biane and Mr. Postmus had arrived at. This created a big problem because the attorneys could see through it. They felt it was too much.” Despite instructions not to do so, Paul Watford and Stephen Kristovich, the attorneys from the Munger Tollles & Olsen law firm representing the county, wrote a memorandum to the board of supervisors on April 4, 2005 decrying the proposed settlement and soon thereafter resigned. “Biane and Postmus did not want a written record of what they did. They did not want it circulated. We don’t know how it happened, but this memo somehow got out to the public,” Cope said, creating “big problems” for Postmus and Biane. Ultimately, that settlement proposal was withdrawn. This was frustrating for Burum, Cope said, who “had it [the settlement he wanted] within his grasp,” only to see the prospect for it dashed by the revelation.
At one point, while the members of the board of supervisors were engaged in a closed session discussion of the Colonies matter, according to Cope, Postmus was using his blackberry to inform Erwin of what was being said in that supposedly confidential forum, and Erwin was relaying the information to Burum.
As much as Burum was interested in a generous cash settlement of the lawsuit, Cope said, more desirable was another settlement proposal involving the conveyance of property the county owned but no longer needed in Deer Canyon at the north end of Rancho Cucamonga. If the Colonies Partners could get that land, Cope said, the company could develop it and make hundreds of millions of more dollars. A land transfer would have required the approval of four members of the board of supervisors, Cope said, and the votes to do so never lined up or stayed in place long enough to effectuate that.
Burum continued to both pressure and charm Postmus, Cope said. “One of the things he did was to set up a meet and greet event for Mr. Postmus at the Redhill Country Club,” Cope said, and Burum also accompanied Postmus oversees. “In September 2005 Mr. Postmus went on a trip to China with other delegates from the county and Mr. Burum,” Cope said. “Mr. Postmus will tell you he went to Hong Kong where he bought for himself a couple of suits. Everything else was paid for by Mr. Burum.” Upon returning to San Bernardino, Cope said, Postmus aggressively stormed into the county chief administrator’s office, stating that the lawsuit with the Colonies partners had to be settled at once. “When Mr. Postmus came back from China, he was insistent, saying ‘We’ve got to get this Colonies thing done,’”Cope said, quoting him.
Cope said that “eventually the case went to a judge, Judge Christopher Warner.” At that point, Munger, Tolles and Olsen had been replaced as the county’s attorneys by the law firm of Jones Day. “Judge Warner’s ruling was not a good one for the county,” Cope acknowledged. Nevertheless he said, the county’s attorneys were confident they could get, as they had with the ruling by Judge Norell, a reversal. Jones Day felt there were issues that would vindicate the county upon appeal, including, according to Cope, that the flood control easements yet existed and that the $17 million paid out to the Colonies Partners through the previous CalTrans “settlement was intended to take care of all future damages” as a result of the construction of the 210 Freeway. Moreover, according to Cope, the county had yet to explore wringing from the City of Upland and SANBAG their fair share of any conceivable liability that grew out of the situation. “The county did not seek settlement from SANBAG or the City of Upland or Caltrans,” Cope said. “It was only San Bernardino County that was on the hook and Jones Day was telling the board of supervisors you don’t want to settle, leaving yourself on the hook when you have other parties responsible. In a lawsuit like this when you settle for more than you should, you might create problems in the future in getting money from the other side. How are you going to get money out of SANBAG, Upland and Caltrans?””
At that point, the November 2006 election was approaching, in which Postmus was running for assessor and on the ballot was Measure P, an initiative sponsored by Paul Biane to raise the compensation of the members of the board of supervisors from $99,000 in salary plus benefits per year to $151,000 in salary plus benefits annually. Because both supervisors had something riding on the election, that left them vulnerable to Burum and Erwin, Cope said. At that point, it was conveyed to Postmus and Biane that Burum and Erwin had prepared political hit pieces – that is, mailers, handbills or fliers – with derogatory information about them – the two highest ranking members of the county Republican Central Committee, namely that Postmus was a drug addicted homosexual and Biane was a homosexual who was teetering on the brink of bankruptcy. What was conveyed to them was that a private investigator had been going over their affairs with a fine-toothed comb, including digging through their garbage.
“Postmus is a clean cut guy, upstanding, he’s young and somebody people from the desert would like to vote for. He comes from a religious family. His father was in law enforcement. Mr. Erwin knows that he’s a homosexual. At that time in this county if you were Republican, that was the kiss of death. If that was made public, that would be the death of his political career. He also knew Mr. Postmus was a drug addict. He started with doctor-prescribed medications and then methamphetamine he was introduced to by one of the people he met for sexual liaisons. Yet, he was able to still do his job, still get elected to the assessor’s office. Now, in terms of what is happening and where we are at with the settlement, it is very important. Erwin wants the settlement to happen because he knows it is going to benefit him as well. What will Bill Postmus’ dad or family think? There is the threat the fliers will be sent out over the election in 2006.” Ultimately, the hit pieces did not go out, Cope said. Three weeks after the election, a grateful Postmus and Biane voted to approve the $102 million settlement.
“Mr. Erwin talked about the mailers that were going to be sent,” said Cope. “He had mock ups and showed them. This was an arrangement of great benefit to Mr. Burum and Mr. Erwin. He provided a role that was beneficial to Mr. Burum. He knew they would not agree to the settlement without an incentive. Mr. Erwin was perfectly situated for that role.”
Less than two months after the settlement was voted upon, Burum used a private jet to fly Erwin and O’Reilly to New York, where they stayed at a luxury condominium and went to an off-Broadway show and then to an upscale jewelry store where Burum purchased both men a watch, including a Rolex for Erwin that cost more than $12,000. They then flew to Washington, D.C., where they spent the night at the Mandarin Hotel in separate $400 per night rooms and met with Congressman Kevin McCarthy for lunch.
“After a night in the Mandarin, they flew back,” said Cope. “It was a nice, short, extravagant thank you for helping Mr. Burum get $102 million.”
Mr. Erwin had hired on to the assessor’s office and, according to Cope, in filling out his statements of economic interest, Erwin omitted mentioning the trip, the accommodations or the watch.
“If you don’t disclose those things, it’s a crime,” said Cope. “He didn’t report the watch [and] he didn’t report the airplane trip because to do so would show his direct connection to Mr. Burum. That was something he did not want to do.”
In 2007, between March and the end of June, the Colonies Partners issued separate $100,000 checks to political action committees prosecutors say were controlled by Biane, Erwin and Kirk, and two $50,000 checks to each of two political action committees controlled by Postmus.
According to Cope, Erwin “took money out of his PAC so he could pay his legal bills.” He also falsified a document with the falsified signature of Steve Hauer, believed to be an unwitting principal in Erwin’s PAC.
“Steve Hauer will come in here and will be asked if his signature is on that letter,” said Cope. “His answer will be ‘No.’ That was a method by which Mr. Erwin would hide the source this PACs money was coming from. Evidence will show Mr. Erwin was involved in doing things in a way to keep the public from noticing.”
Cope said, “Mr. Burum knew the public servants he was dealing with were flawed people. That worked to his benefit. He was able to capitalize on those flaws and motivate them to do what he wanted them to do. Mr. Erwin played a very important role in that. It was a very savvy, very well coordinated dance, this conspiracy to achieve this goal. There are people who will testify, people you perhaps will not like very much. Test what they say in light of all of the evidence. They were targeted because they had those flaws. Certainly, Mr. Erwin was very familiar with those flaws. He knew he would be successful and these other men would also benefit if he was successful. His work helped lay the groundwork for the bribery. He was excited about this. He went about his work with great relish. He profited by it. He did it by capitalizing on the weakness of others and by corrupt means that have brought us all here.”

Raj Maline

Immediately following the conclusion of Cope’s presentation on Wednesday afternoon, Raj Maline, Erwin’s attorney, offered his opening statement, which served as both a rebuttal of most if not all of Cope’s assertions as well as an exploration of further territory. When his remarks were not concluded in the late afternoon of Wednesday January 4, he returned to the courtroom the following day to finish. Like Cope’s prosecutorial-angled diatribe that sought to orient Erwin’s jury to the overarching context of the theory of criminal collusion involving all four current defendants, Maline’s remarks went beyond a straightforward defense of his own client and in several specific instances appeared calculated to refute the characterization of guilt lodged against Kirk, Biane and more expansively, Burum.
Saying he was “proud to be representing Jim Erwin, Maline asserted that the prosecution had engaged in a selective presentation of fact, conjecture and misrepresentation, which he likened to his own experience attending a Lakers game when he was inadvertently caught on the Staple Center’s “Kiss Cam” seated next to a woman who was not his wife, which implied he and she were a couple. “That was the picture painted of me in a snapshot. But if you go outside of the frame, that has nothing to do with reality. The story you just heard has no basis in reality,” Maline said.
It was the county and county officials who abused the defendants in the case his client is caught up in, Maline said, not the other way around.
Maline said, “I do agree with Mr. Cope that there was a dirty deal. There were corrupt county officials, but not the county officials he said. It was the county officials that did corrupt things and pulled dirty deals on Jeff Burum.”
According to Maline’s narrative, the property purchased in northeast Upland by the Colonies Partners for development was indeed once a flood drainage area, but was no longer one during the time the lawsuit was launched. He said massive scale flooding that occurred in the region in 1969 resulted in the Army Corps of Engineers having “constructed a channel that went alongside [the property] that sent [the floodwaters] down to Prado Dam,” rendering the huge flood basin there obsolete and eradicating the need for the flood water spreading grounds. “It was a natural kind of flood control system. The natural habitat allows water to stop going forward and instead it seeps into the ground. When the Army Corp built this channel, all of sudden he channel took care of all the water. That archaic flood control area could be developed for other purposes.” After other “developers took a shot at using that property” but did not progress along that track, Maline said the “growing population of the area” and “transportation needs and plans underway for development of 210 extension through Upland that would bring more cars and people to the area” inspired a young developer, to take a chance at transforming the property. “That young developer was Jeff Burum,” Maline said. “He got in. He saw an opportunity. He pooled his money with 23 other people called the Colony Partners, which included a U.S. senator, doctors and lawyers, and he took a chance.”
The Colonies Partners, Maline said, paid $16 million for the land in 1997. “This property was a wasteland for many years. No one would touch it. It had been used for years for natural flood control. A lot of developers passed. Mr. Burum had a vision.” Maline said that Cope’s insinuation that the Colonies Partners investment entailed just $16 million was far off. “They needed $100 million to build the infrastructure before anyone could build on it, just to get things going,” Maline said.
As the company started to develop the property, Maline asserted, the county interfered with its plans. During phase one of the project, Maline said, “Mr. Burum learned that the county flood control district is contemplating diverting excess water from the 210 Freeway extension. There are three square miles of a watershed area northwest of the Colonies. The county has to deal with water and storm water and what to do with it. The county comes up with a plan to build the storm drain and dump the water onto the Colonies property. At that point the developer who had the property cannot use the property for what it was bought for.”
Maline continued, “In 1998, discussions began as to what to do with the water. It is not an option for Mr. Burum to have the water all dumped on his land. That is the county’s responsibility. That is not fair. A series of discussions are held.” During those discussions, Maline said, the county, in the personage of flood control director Ken Miller offered the Colonies Partners an assurance that if the county were to be allowed to use the property for storm water runoff, no more than 650 cubic feet of water per second would be conveyed there. Maline said that assurance prompted Burum to go along with the county. He said that Burum’s reaction was “Now, if it is only that much you are going to dump, I can build my houses, and I will even pay to divert your water. I will do it myself and I will build the connection to the storm drain.” Thus, Maline said, “They made a deal.” But there was a catch, Erwin’s lawyer said. “Mr. Miller knew that he was lying. He knew as early as 1997 that the water discharge rates would be in excess of 650 cubic feet per second. He misrepresented.”
Maline asserted, “Private land owners are not responsible for water. Government has a responsibility for flood water. That is the reason why the county has [a] flood control [division]. Mr. Burum does not want the storm drain [to empty] onto his property. He will not be able to use 70 acres, and then what will have to happen is the bulk of his property [will need to] be used to convey water over to that channel. That is 70 acres that he would not be able to use and he bought it for development, fair and square.”
When Burum raised that issue, Maline said, the county’s response eventually became ‘We have an easement that allows us to use it as a flood control system.”
The county was bullying Burum, Maline said.
“So when Mr. Burum signed that agreement, he [Miller] knew that they were going to dump in excess [of 650 cubic feet of water per second]. Mr. Burum said, ‘Hold on. I already have plans [to develop] in place.’ The county did something else. The further evidence of corruption is that the county said [as of] stage two and stage three of your development, you are not going to be able to do it unless we can turn on that storm drain. Who was going to pay for that kind of flood control? Mr. Burum was to pay. In secret, the storm drain got turned on.”
Maline said Miller and the county engaged in “a shakedown of Mr. Burum. The county would not approve future phases unless he allowed the storm drain. Mr. Burum had no choice. He had to file the lawsuit. They [the Colonies Partners] simply asked the judge to make a finding, a ruling of what the county has and what he had. He did not ask for one dime.”
Thus, Maline said, Cope’s characterization of Burum being motivated by greed was absolutely false.
Maline said that both Judge Peter Norell and Judge Chrisopher Warner made the determination that the county had misapplied its easements.
Ultimately, Maline said, Warner made a determination that the county’s flood control authority on the Colonies property did not go beyond the scope of what was spelled out in the 1933, 1934 and 1939 easements and that by the county substantially overusing those easements, they had been extinguished, that is, were no longer applicable.
According to Maline, “Judge Warner ruled the Colonies has fully performed under the 1999 agreement; that the Colonies designed, constructed and paid for basin B and the design for basin A, despite no requirement to do so because of the county’s breach; that the county failed and refused to negotiate in good faith with the Colonies despite a contractual obligation to do so; and the county held the Colonies property hostage.”
Basin A was the facility that would hold the water coming in from off the site; Basin B was to hold the drainage generated on the site.
Furthermore, according to Maline, Warner stated, “The court found Mr. Burum to be a very credible witness. He answered questions without hesitation or equivocation. The court does not find Mr. Miller to be a credible witness because he did not appear to be forthright in his responses.”
After Warner entered a tentative ruling in favor of the Colonies Partners on the lawsuit, he encouraged both the county and the Colonies Partners to enter into a mediation to head off the need for him to enter a final judgment and then make a determination as to monetary damages.
Maline said that the county, at the urging of its law firm, Jones Day, did not seriously negotiate but instead seemed purposed to allow the judge to finalize his rulings so the county could again appeal the matter to the appellate court.
Given the nature of Warner’s rulings, Maline said the county’s prospects at the appellate level were dim, and that Burum was not pushing for a settlement, as Cope maintained in his opening statement.
“Mr. Cope is telling you something, but it wasn’t right, because the county needed to settle,” Maline said. “Judge Warner strongly directed both parties to settle before his statement of intended decision became a final judgment in 30 days. Mr. Burum did not want to settle. It is the county who wanted to settle. At that point the bargaining power is now with the Colonies.” Maline said the Colonies Partners stood to gain as much as or more than $300 million by not settling the lawsuit and instead waiting to let Warner make a final ruling.
Maline said Postmus had become hopelessly addicted to drugs by the time he was assessor. He related several instances when that drug use manifested in erratic or untoward behavior on Postmus’ part. He said his client, Erwin, at one point intervened and checked Postmus into a rehab center in Lucerne Valley. When Postmus again began using drugs, Maline said, Erwin resigned from his post as assistant assessor. He said his client was later summoned to testify about the situation at the assessor’s office and that he told the truth in that forum, angering both Postmus and Aleman. He said Postmus’s drug use has rendered his word and recollection unreliable.
Maline dwelled at length on Adam Aleman, upon whose representations, he maintained, the bulk of the prosecution’s case relies.
He said that the two major prongs of the case – the extortion of Bill Postmus and Paul Biane before the settlement and the provision of bribes to Postmus, Biane, Kirk and Erwin after the settlement – were fabrications put forth by Aleman. Noting that Cope had referenced “threats, mailers, flyers, drug use, those types of things,” Maline said, “I can assure you, ladies and gentleman, that most of these things that he intends to show as evidence is Mr. Aleman’s statements over a period of time. Mr. Aleman got into a position where he was involved with the district attorney’s office. In 2007 Mr. Postmus won the election for county assessor and he picked two assistant assessors, Mr. Erwin, my client, and Mr. Aleman, who had been an assistant of his when he was on the board of supervisors. When he was brought over to the assessor’s office, he [Aleman] was number two in command. Adam Aleman and Bill Postmus defrauded the assessor’s office and the county from 2007 to 2008.”
Aleman is, Maline said, “a self-admitted and convicted liar, a master manipulator [who had] a unique relationship with his boss, Bill Postmus. He started working with Mr. Postmus at 20-years-old at the board of supervisors. Postmus was running his political machine, raising money, supporting candidates, enhancing his Republican status and power under the cover of the assessor’s office. Setting up a political base is legal if you are doing it on your own time. He also brought over staff who had nothing to do with assessors business, brought over [others engaged with] political activity. His friends, lovers and political cronies were brought over to the assessor’s office. They had nothing to do with land appraising or assessing. This had to do with the political operation.”
Maline continued, “Mr. Erwin was running the assessor’s office, making sure the work was done. In secret, the other half of the assessor’s office was the political operation. Mr. Aleman was heading that up. He was 23 or 24 years old. He had no experience, no college education. He was not even an appraiser. So he was definitely not qualified for the job. Eventually, with their political activities they got caught. This is how they got caught. The grand jury reconvened to investigate the assessor’s office. The grand jury asked for documents because there were secret meetings on political strategy and who they can support politically. A female staff member is reporting, writing down all minutes about political activity. Their cover would be blown if they turned over the minutes. So Aleman’s job was to change minutes, to substitute words to make it seem like it was assessor’s business. Mr. Aleman did not count on the staff member keeping the original. She had a hunch that is what they were going to do, so she kept the original, and she turned it over and they got caught.”
Maline said, “That is where the legal odyssey of Adam Aleman began. Of course, he did much more than just that. Aleman was Postmus’s fixer. He literally covered up for Postmus on a full time basis because Postmus was not able to go to meetings. Aleman would lie for him. Postmus would end up in places, passed out with strange people. He would dust Postmus off, cover for him.”
When the district attorney’s office investigators showed up, they wanted Aleman’s computer, but, according to Maline, Aleman “knew there was damaging material on the computer. So he destroyed the computer and removed the hard drive. When he was questioned regarding the hard drive, he said he didn’t have it anymore. The hard drive in the computer he literally destroyed with a screwdriver and other tools. They investigated the extent of his malfeasance in his office. On June 30, 2008 Mr. Aleman was arrested.”
In time, Aleman began cooperating with the district attorney’s office. In the course of that cooperation, he provided information which Maline said contradicts the notion that Postmus was being extorted on the basis of his homosexuality.
“Aleman worked for him [Postmus] at the board of supervisors for three to four years,” Maline said. “Strangers would show up there and be demanding money. Mr. Postmus would send Mr. Aleman down to the county building across the street to get money. Postmus had been with these men on previous occasions and had promised them things. Mr. Aleman was very sure that Mr. Postmus had had relationships with those men and they were coming to him for money. They would show up. He would be telling these men where he worked.”
That Postmus was openly involved in these homosexual liaisons belied, Maline suggested, the narrative Cope had put forth to suggest he was being blackmailed over that issue by Burum. “He wasn’t afraid that anyone would expose his being gay because many people knew he was gay,” Maline said.
After his arrest, Aleman was charged with nine felony counts, including three counts of PC 134, false evidence preparation; one count of PC 132, offering false evidence; one count of Government Code Section 6200, relating to the destroying/altering of public records; and one count of PC 594 vandalism.
The legal cloud hanging over Aleman, Maline said, led him into becoming a font of disinformation.
“He was afraid about the criminal charges,” Maline said. “He was looking at 8 years. He was facing multiple felonies. He approached the district attorney’s office and said he wanted to become a snitch if he could get a better deal somehow. He was on an audition for eight months, trying to impress them on all the things he thinks he knows about in the county. At 24-years-old, he doesn’t know much but he’s got to give them something, information about Mr. Postmus. He was setting Mr. Postmus up.”
Maline said he carried a recorder in his pocket with which he audio recorded his boss. “He hoped he would get Mr. Postmus to say some incriminating things,” Maline said. “He would text him. One day in one of the interviews he mentions the Colonies case. The investigators stop. From the way the interview is conducted we know that is an important thing.”
Maline said Aleman suggested the PAC contributions were “done illegally because Mr. Kirk took out $10,000 from his PAC. He didn’t mention the bribes. He did mention the Colonies and from that point on most of the discussions are regarding the Colonies case. He talked about the mafia in Victorville. He doesn’t mention anything about threats by Mr. Erwin prior to the settlement. Most information he gives the investigators he knows nothing about. He talks about meetings he has had with Jeff Burum. He never met Jeff Burum even once but he talks about Mr. Burum like he’s his old buddy, old pal.”
The two investigators working on Aleman, Maline said, “are a guy named [Hollis] Randles and a guy named [Robert] Schreiber.”
Randles and Schreiber were two district attorney’s office investigators who were instrumental to what Maline described as a “political prosecution” of Postmus, Biane, Burum, Erwin, and Kirk.
Postmus referred to Randles and Schreiber as “the thug squad,” Maline said. “Bill Postmus said the thug squad made him say things he didn’t want to say,” Maline said. Maline said Randles and Schreiber pounded on both Postmus and Aleman, asking them leading questions until they elicited the preordained responses they were seeking.
Another sign that the prosecution was political, Maline said, was the manner in which the investigators and eventually the prosecution team utilized deputy county counsel Mitch Norton, who was involved in the Colonies litigation from the beginning until the end. Norton from 2002 until 2006 contended that the Colonies Partners were seeking compensation in the company’s lawsuit that was excessive but later asserted the settlement was a just one, Maline said.
Maline charged San Bernardino County District Attorney with engaging in a political prosecution.
“District attorney is a political office,” Maline said. “We will show this was a political decision to prosecute even though there was overwhelming evidence of innocence. This will be shown by the bizarre way the investigators went about not looking for the truth but for a predetermined outcome. Any responsible law enforcement agency would have walked away from this case. We’re here because the elected district attorney of this county made a political decision to go after four innocent men for his own personal agenda when he announced the indictment with great fanfare on television.”
At that point, Maline, who was using a projector to display graphics to the jury, had a slide which stated that Ramos and Erwin had once been friends and that Erwin once supported Ramos politically, that Erwin supported Neil Derry, who successfully ran for Third District supervisor in 2008 and that Ramos did not support Derry. On the same slide there was a graphic showing political consultant David Ellis, who had worked on Ramos’s campaigns, as an intermediary between Ramos and Erwin. As Maline began to further expound on the political implication of the one-time Erwin-Ramos alliance, Cope objected, and there followed a several minute side-bar conference at the bench with Judge Michael A. Smith, Cope and all of the defense attorneys present. Following that conference with Smith, who on Wednesday had deferred a ruling on a request by the prosecution to quash a defense subpoena for Ramos to testify, Maline concluded his opening statement without any elaboration or elucidation of the Erwin/Ellis/Ramos connection. He instead alerted the jury to a political contribution disclosure statement, Form 700, that would be the subject of examination during the trial. Maline detailed and listed the items that were allegedly not disclosed which the prosecution, he said wrongfully concluded was evidence of a cover-up of payoffs from Burum. Maline told the jury that there was nothing wrong with political contributions and that the trip was made partly to smooth relationships after the settlement battle. Maline’s explanation was that Erwin, who considered Ramos a friend, had sought the district attorney’s advice as to how to report. Instead, with the implication that Ramos was disgruntled with Erwin for being in league with Derry and because Ramos was politically motivated to obtain a conviction in a highly publicized case, Maline said, Ramos and the district attorney’s office, for politically motivated reasons, chose to torturously mischaracterize the incomplete Form 700 as evidence of the crimes they were wrongfully accusing Erwin of engaging in.
Maline ended the statement by asking the jury to find his client, Jim Erwin, innocent of the charges against him.